« October 25, 2009 - October 31, 2009 | Main | November 8, 2009 - November 14, 2009 »

November 7, 2009

Trying out the Droid

I got a new toy today: the new Droid phone. And this post is a test of Droid-blogging.

November 7, 2009 in On blogging | Permalink | Comments (2)

Amicus filing in SCOTUS habeas cases creating controversy among death penalty crowd

This story from the Boston Globe, which is headlined "Death penalty foes rip Coakley for signing brief," highlights that the politics of the death penalty in Massachusetts in quite different than in other parts of the country.  Here is the start of the story:

Attorney General Martha Coakley, who says she is firmly against capital punishment, has drawn the ire of some death penalty opponents by urging the US Supreme Court to limit federal review of state court decisions, which opponents say could make it harder for defendants on death row to challenge their sentences.

Coakley, along with 18 other attorneys general, signed a friend-of-the-court brief in September asking that the nation’s highest court maintain restrictions on intervention by federal courts.  Death penalty opponents, who are watching the case closely, say if Coakley’s arguments prevail it could be more difficult for federal courts to overturn death sentences, as well as other criminal punishments, handed down in state courts.

The case, which comes as Coakley is battling for votes in the Democratic Senate primary, involves a convicted murderer from Alabama who has appealed his case to the Supreme Court, on the grounds that his state-assigned lawyer failed to introduce crucial evidence that he is mentally retarded.

“There’s no way this kid should be killed," said Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, an organization that opposes the death penalty.  “It’s old-fashioned Southern states’ rights. I was shocked to see that she and the state of Massachusetts had joined that brief."

November 7, 2009 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

November 6, 2009

Fourth Circuit affirms reliance on uncharged conduct in sex offender sentencing

The Fourth Circuit today in US v. Grubbs, No. 07-5040 (4th Cir. Nov. 6, 2009) (available here), considers and rejects a number of procedural challenges to a federal sex offense sentence. Here is how the opinion begins:

Jimmie Vance Grubbs pled guilty to six counts of knowingly transporting someone under the age of eighteen in interstate commerce with intent to engage in a sexual activity, in violation of 18 U.S.C. § 2423(a), and six counts of traveling in interstate commerce for the purpose of engaging in a sexual act with a person under the age of eighteen, in violation of 18 U.S.C. § 2423(b).  The district court sentenced Grubbs to 240 months of imprisonment and a life term of supervised release.  On appeal, Grubbs does not contest his convictions, but contends the district court erred in imposing his sentence for three reasons: (1) the district court violated his Sixth Amendment rights by considering uncharged conduct when deciding an appropriate sentence; (2) the district court violated his Fifth Amendment rights by failing to require the Government to prove uncharged conduct by more than a preponderance of the evidence standard; and (3) the district court committed procedural errors in calculating his United States Sentencing Guidelines ("Guidelines") range.  For the reasons that follow, we disagree with Grubbs and affirm the judgment of the district court.

November 6, 2009 in Booker in the Circuits, Procedure and Proof at Sentencing | Permalink | Comments (28) | TrackBack

November 5, 2009

Florida state judge reduces homicide sentence based on "battered spouse syndrome"

This notable local sentencing story, which is headlined "Davie woman gets five-year sentence for fatal shooting: Woman gets 5 years for killing man who abused her," reports on a sentencing reduction a judge granted based on "battered spouse syndrome."  Here are the details:

Physically, sexually and emotionally dominated by a hulking man who gave her drugs in exchange for sex, Lisa Marie Romero's breaking point came when he threatened her three children's safety.

Romero, 39, shot Frank Don Alvarez, 61, in the back of the head with a rifle and left him dead, face down in an industrial area north of Davie Boulevard near Interstate 95, on Nov. 17, 2006.

Finding that Romero suffered from battered spouse syndrome, Broward Circuit Judge Ilona Holmes on Thursday cast aside sentencing guidelines that called for a 10- to 30-year sentence and sent Romero to prison for five years.

Incensed by the light sentence, Alvarez's son, John, 44, stormed out of the courtroom. "Put it this way, I will get my justice when she gets out of prison," he said, pacing in the courthouse hallway. "She will find out."

He had not yet heard that the judge also gave Romero credit for the nearly three years she had spent in jail awaiting trial. Prison will be followed by 10 years of probation.

Influenced by opinions from two psychologists who found that Alvarez abused Romero, state prosecutor Al Ribas downgraded a charge of first-degree murder to manslaughter with a firearm. In September, Romero pleaded guilty to that charge.

November 5, 2009 in Offender Characteristics, Offense Characteristics | Permalink | Comments (14) | TrackBack

Bernie Kerik enters plea deal providing him a different perspective on homeland secutiry

As detailed in this New York Times article, Bernard Kerik today pleaded guilty to eight charges including tax fraud and lying to White House officials. Kerik, who lead the NYPD through the 9/11 attack and was taped in 2004 to head the Department of Homeland Security, was able to secure a plea deal with a specific sentencing recommendation:

The prosecution and the defense recommended that the judge, Stephen C. Robinson, sentence Mr. Kerik, who faced up to 30 years in prison on the most serious charge, to 27 to 33 months. The judge, who is not bound by the recommendation, set sentencing for Feb. 18. Mr. Kerik was also ordered to pay restitution of nearly $188,000.

The tax fraud charges stemmed in part from Mr. Kerik’s acceptance of $250,000 in renovations to his Bronx apartment, provided by a company accused of having ties to organized crime. He also admitted lying to White House officials, denying improprieties, while he was being interviewed to be head of the Department of Homeland Security.

November 5, 2009 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (12) | TrackBack

Playing the "blame game" for increased sentencing disparities after Booker

With the upcoming five-year anniversary of the Supreme Court's decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities.  Here are some of my early thoughts:

1.  As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker.  With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.

2.  Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases.  Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.

3.  Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines.  As the US Sentencing Commission's own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.

4.  Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases.  Indeed, playing the "blame game," here is how I would roughly prioritize who merits the most "blame" for increased sentencing disparities after Booker:

A.  Congress --- for failing to seek to reform or revise the entire system after Booker

B.  US Sentencing Commission --- for failing to revise the most unsound guidelines

C.  SCOTUS and the Circuits --- for failing to give reasonableness review any substantive content

D.  Justice Department --- for failing to urge Congress or the USSC to do better

Of course, there is additional "blame" to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been "disparate" in their sentencing advocacy over the past five years.  Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys' offices and probation offices, and differing procedures surely contributes to disparate outcomes.

But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker.  These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day.  If there is a broad concern that system-wide justice is not being well-served as we approach Booker's five-year anniversary, the blame should be principally placed on the system-wide actors who've mostly produced and perpetuated the post-Booker system-wide framework.

November 5, 2009 in Booker and Fanfan Commentary, Booker in district courts, Who Sentences? | Permalink | Comments (9) | TrackBack

"[A]mong those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior"

The title of this post is the key take-away from the abstract of this new criminology paper on SSRN from Donald Green and Daniel Winik. The paper is titled "Using Random Judge Assignments to Estimate the Effects of Incarceration and Probation on Recidivism Among Drug Offenders," and here is the abstract:

Most prior studies of recidivism have used observational data to estimate the causal effect of imprisonment or probation on the probability that a convicted individual is re-arrested after release. Very few studies have taken advantage of the fact that in some jurisdictions, defendants are randomly assigned to judges who vary in sentencing tendencies.  The present study investigates whether defendants who are randomly assigned to more punitive judges have different recidivism probabilities than defendants who are assigned to relatively lenient judges.

We track 1,003 defendants charged with drug-related offenses (and no non-drug-related offenses) who were randomly assigned to nine judicial calendars between June 1, 2002 and May 9, 2003. Judges on these calendars meted out sentences that varied substantially in terms of prison and probation time. We tracked defendants using court records over a four-year period following the disposition of their cases in order to determine whether they were subsequently re-arrested.  Our results indicate that randomly-assigned variations in prison and probation time have no detectable effect on rates of re-arrest.  The findings suggest that, at least among those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior.

November 5, 2009 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (8) | TrackBack

Noting significant biases in pot policies and practices

CNN has this notable new commentary headlined "Pot acceptable?  Not for young and nonwhite," which is authored by Stephen Gutwillig of the Drug Policy Alliance. Here are extended excerpts from an important piece:

This year is a watershed year in pot politics.  The Obama administration recently announced it would defer to state medical marijuana laws and stop federal prosecutions of patients and providers who comply with them.  In California, the tanking economy inspired Gov. Arnold Schwarzenegger to call for debating marijuana taxation and regulation, a bill was introduced in Sacramento to do just that, and four separate ballot initiatives are circulating to allow voters the chance to decide the issue for themselves.

Schwarzenegger's position was echoed by New York Gov. David Paterson and by Arizona Attorney General Terry Goddard, who suggested legalizing pot could cripple Mexican and U.S. gangs.  The unprecedented momentum to question marijuana prohibition is being fueled by a widely remarked-upon phenomenon — the cultural mainstreaming of marijuana.

From Showtime's established hit "Weeds" to the "Is Pot Already Legal?" cover of Fortune magazine in September, marijuana is commanding attention and an odd kind of respect for its sheer popularity and massive revenues.  Marie Claire magazine and the "Today Show" profiled "stiletto stoners," stressed-out women professionals who unwind with a doobie instead of a cosmo.  And in a recent style feature, the Los Angeles Times gushed that "cannabis culture is coming out of the closet," citing its ubiquity across the spectrum of pop culture and high-end design....

Pot is indeed flourishing in the mainstream as never before, but the sometimes giddy discussion overlooks a sinister parallel phenomenon: More people are being arrested for pot crimes than ever; they are increasingly young and disproportionately nonwhite.

In 2008, the police arrested 847,864 people nationwide for marijuana violations, according to the 2008 FBI Uniform Crime Report.  Pot arrests represent fully half of all drug arrests reported in the United States.  The overwhelming majority — a whopping 89 percent — were charged with possession only.  Most striking, the marijuana arrest rate in the United States has nearly tripled since 1991.

More people are being arrested for pot crimes than ever; they are ... young and disproportionately nonwhite. Examples from both coasts illustrate this.  In California, according to the Center on Juvenile and Criminal Justice, crime arrest rates have generally plummeted statewide from 1990 to 2008 by an average of 40 percent.  Drug possession arrests for everything but marijuana collectively fell by nearly 30 percent.  But during that same 18-year period, arrests for marijuana possession in California skyrocketed 127 percent.  In 2008, more Californians were arrested for pot offenses than any year since decriminalization took effect 34 years ago.

Similarly, New York state decriminalized simple marijuana possession in the 1970s.  But under Mayors Rudolph Giuliani and Michael Bloomberg, New York City has become one of the marijuana arrest capitals of the world — 40,300 arrests last year. In the years between 1997 and 2008, the NYPD made 12 times as many pot possession arrests as in the previous 12 years, according to a study by the New York Civil Liberties Union.

How can the notion that marijuana is "here to stay" coexist with these rates of marijuana arrests?  Apparently because the people caught in the crossfire aren't considered part of the mainstream.  In California, African-Americans are three times as likely as whites to be arrested for a pot crime...  In New York City, blacks and Latinos — who represent about half the city's population — accounted for 86 percent of everyone charged with pot possession in 2008....

Widespread discussion of everyday marijuana consumption is helping turn the tide against decades of failed marijuana prohibition.  However, too much of that conversation is ignoring the people most impacted by our punitive policies.  We must end pot prohibition and stop the massive number of arrests and biased enforcement that are at its core.

Some recent related posts:

November 5, 2009 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (7) | TrackBack

"10 Bodies in Sex Offender's Home: Is System Broken?"

The title of this post is the headline of this new ABC News piece which seeks to reflect on what the horrific Anthony Sowell case might tell us about modern sex offender regulation efforts. Here are snippets from the piece:

As the count of bodies found at the Cleveland, Ohio, home of a registered sex offender, more and more people are wondering how they could have gotten there without anyone knowing?

Now that Anthony Sowell has been arrested and charged with multiple counts of murder, the question is, why weren't the police and parole officers who were keeping tabs on him aware of what was going on?

Sowell, 50, today was ordered held without bail on five counts of aggravated murder, while police investigators confirmed they had found 10 bodies in and around his home, and a skull in his basement. "In 28 years of being on this bench, this is without question the most serious set of allegations that I have ever faced," Judge Ronald B. Adrine said during Sowell's court appearance today....

If it turns out that Sowell is responsible for the deaths of the people whose bodies have been found at his home, it could because he was able to exploit a broken parole and sex offender registry system.  Sowell was a registered sex offender, but authorities failed to enlist the community's help to be on the lookout for signs of trouble....

Experts say sex offender lists are not only long, but fail to distinguish between minor offenders and the most dangerous predators.  "The system that we have to do monitoring and supervision follow-up once they return to the community is just overwhelmed," said Ernie Allen of the Center for Missing and Exploited Children.

November 5, 2009 in Sex Offender Sentencing | Permalink | Comments (38) | TrackBack

As Booker approaches five, the individual/equal justice debate continues on

Remarkably, in just a couple of months, we can mark the five-year anniversary of the Supreme Court's decision in Booker to transform the federal sentencing guidelines from legal mandates to advisory rules.  The the debates over federal sentencing rules and results have taken many forms over these last five years, this new article from the Wall Street Journal spotlights that the most enduring issue remains whether Booker strikes a sound balance between the competing goals of individual justice and equal justice. 

The new WSJ piece is headlined "Looser Rules on Sentencing Stir Concerns About Equity," and it gives particular attention to potentially disparate white-collar sentencing outcomes after Booker. Here are excerpts:

[L]andmark Supreme Court cases in 2005 and 2007 ... gave federal judges more freedom to depart from sentencing guidelines. But this relatively new latitude has caused a thorny problem to creep back into the federal system: Defendants can receive wildly different sentences for similar crimes.

"There is preliminary evidence of greater inconsistencies between judges, who have the freedom to draw upon their own political, policy and punishment values when they make sentencing decisions," says Ryan Scott, a law professor at Indiana University who has studied sentencing behavior by federal judges....

Proponents of greater sentencing discretion say past rules were too inflexible, preventing judges from using their expertise to fit the punishment to the crime.  But others warn that the new freedom risks a return to the problem that prompted Congress to call for uniform sentencing guidelines in the late 1980s: that defendants' fates will be subject largely to the whims of individual judges.

Since sentencing parameters were relaxed, early indications suggest that judges on balance are using their discretion to give longer white-collar sentences.  Average prison sentences for fraud increased to about two years in the nine months ended in June 2009.  That is six months longer than fraud sentences for the same period five years earlier, according to data from the U.S. Sentencing Commission, a federal agency.

But in some cases, judges have handed down much lower sentences than would have been required by law just a few years ago....   The new level of unpredictability has drawn the ire of some prosecutors and defense attorneys worried about inequitable sentencing.

For white-collar cases in particular, "we're back to a pre-guidelines era," says Frank Bowman, a law professor at the University of Missouri who helped shape federal sentencing guidelines in the mid-1990s.  "You see the most disparity and the most potential for disparity, and I think that's a bad thing."

Alan Vinegrad, a former U.S. attorney in Brooklyn who is now a defense lawyer, counters that being able to customize sentences can increase fairness in the judicial process, even though there is more uncertainty in the courtroom.  "To me," he says, "that risk is tolerable."

Concern that the relaxed guidelines are creating unfair disparities appears to be growing.  In June, U.S. Attorney General Eric Holder said in a speech that it was important to assess whether recent sentencing practices "show an increase in unwarranted sentencing disparities" based on "differences in judicial philosophy among judges working in the same courthouse."

November 5, 2009 in Booker and Fanfan Commentary, Booker in district courts, White-collar sentencing | Permalink | Comments (6) | TrackBack

Ohio Supreme Court hears challenge to state's new sex offender registration rules

As detailed in this local article, which is headlined "Lawyers fight law on sex offenders before Ohio Supreme Court," the latest legal battle over the latest sex offender laws is taking place in my own backyard.  Here are the basics:

Thousands of registered sex offenders would be subject to less-stringent reporting requirements if defense lawyers succeed in challenging parts of a 2007 state law intended to crack down on sexual criminals.

The attorneys told the Ohio Supreme Court today that the get-tough law was applied illegally to more than 26,000 sex offenders who were sentenced before it took effect. In addition, the lawyers said, the measure penalizes people who commit sex offenses before they turn 18 by requiring them to continue to register as sex offenders well into adulthood.

The state's highest court heard four cases today challenging Senate Bill 10, which created a new system for classifying sex offenders based more on the severity of the crime than the likelihood of committing future offenses. More than half of the offenders were placed in the most-serious category — sexual predators — who are required to register every 90 days for life.

Jeffrey M. Gamso, a Toledo lawyer who argued one of the cases, said the law had more to do with securing federal funding under the Adam Walsh Act than protecting Ohioans....

State Sen. Timothy J. Grendell, R-Chesterland, said the law makes it easier for the public to monitor the whereabouts of registered sex offenders on the Internet and through mandatory notices to neighbors.   "The policy decision, from my perspective, was based on protecting public safety," Grendell said.  "The timing was based on us being told we'd get an additional 10 percent (in Adam Walsh funding) if we did this by a certain time. We would not make public policy just to get money."

November 5, 2009 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

November 4, 2009

"Ohio GOP lawmakers: Execution process can be fixed"

The title of this post is the headline of this notable new AP piece discussing Ohio's on-going efforts to try to fix its execution protocol.   Here are excerpts from the piece:

Two Republican lawmakers advising Ohio's Democratic governor on changes to the state's lethal injection process say it shouldn't be hard to fix the system.  The lawmakers, both proponents of capital punishment, are among state legislators helping Gov. Ted Strickland find medical personnel willing to help the state improve its injection process.  Both say they got involved to make sure recent problems with lethal injection don't lead to attempts to eliminate the death penalty.

"We want to make sure our well-established judicial rights to administer capital punishment in appropriate cases are preserved and will not be defeated by new and ingenious means of dodging the executioner," Sen. Bill Seitz, of Cincinnati, said Wednesday.  Seitz said he's talked to lawyers and doctors but has yet to find anyone willing to come forward.  But his conversations have suggested changes Ohio could adopt, ranging from using a retired doctor during executions to requiring that inmates drink enough liquids before an execution to keep their veins healthy.

Sen. Tim Grendell has contacted current and retired doctors looking for advice. "I find it difficult to believe there isn't a functional solution to this problem," said Grendell, of Chesterland.

The death penalty is temporarily on hold in Ohio while the state develops the new policies. The update follows a botched execution on Sept. 15 that was halted when executioners couldn't find a suitable vein on inmate Romell Broom....

Also Wednesday, the Ohio Supreme Court set two new execution dates.  The court set a May 13 execution date for Michael Beuke, 47, convicted of the 1983 murder of Robert Craig, a man he met while hitchhiking on Interstate 275 in southwest Ohio.  The court also set a June 10 execution date for Richard Nields, 59, sentenced to die for the 1997 death of his girlfriend, 59-year-old Patricia Newsome, at their home in Finneytown in southwest Ohio.

Given that Ohio does not seems to be making much progress on a new execution protocol, and given that litigation seems inevitable whenever a new protocol is adopted, I would not bet on these new execution dates holding.  But if there is a persistent will, I suspect Ohio will eventually find a way to get back in the business of executions.

November 4, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

SCOTUS argument transcripts for two criminal justice cases argued today

As noted in this prior post, the Supreme Court today heard arguments in Pottawattamie County v. McGhee, which concerns potential liability of prosecutors for arranging false testimony, and in Wood v. Allen, which concerns the scope of federal court review of facts in state criminal proceeding.  Now, via SCOTUSblog, the "oral argument transcripts for Pottawattamie County v. McGhee and Wood v. Allen are here and here."

With a faculty meeting and then a baseball game in my near future, I may not get a chance to comment on either of these arguments anytime soon.  But that should not stop others from noting anything especially noteworthy via the comments.

November 4, 2009 in Sentences Reconsidered | Permalink | Comments (9) | TrackBack

"All Locked Up: Did Joe Sullivan, sentenced to life at 13, have a fair trial?"

The title of this post is the headline of this new piece at Slate.  Here is how the piece gets started:

Next week the Supreme Court will hear arguments, in Sullivan v. Florida, about whether sentencing a 13-year-old boy to prison without the possibility of parole violates the cruel-and–unusual-punishment clause of the Constitution. Joe Harris Sullivan is one of two teenagers that young currently doing life without parole for a nonhomicide offense in the United States. His lawyers are hoping that the court will extend its 2005 bar on executing criminals who committed crimes as juveniles to Sullivan's sentence.

Whatever the court decides, its ruling will be based on the premise that Sullivan received a fair trial.  The adequacy of that proceeding isn't before the justices now.  But a brief review of the trial record reveals a process so pathetic that it raises questions about whether Sullivan committed the crime in the first place.  It also seems that the trial judge may not have intended to sentence Sullivan to life without parole.  In the end, that judge, along with the prosecutor and defense lawyer, failed Sullivan so deeply that we have to wonder whether his sentence reflects a deep and basic failure of ordinary criminal justice.

November 4, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (20) | TrackBack

Public shaming instead of incarceration in Pennsylvania theft case

Shaming A helpful reader forwarded to me this story from Pennsylvania, headlined "Women Hold Signs Admitting Theft."  Long-time readers may recall that I tend to be a supporter of shaming sanctions, especially when they serve as a substitute for incarceration.  As the press report explains, that's exactly what has happened in this notable state case:

In exchange for no jail time, a woman and her adult daughter have agreed to stand outside a Pennsylvania courthouse holding signs saying they stole a gift card from a 9-year-old girl on her birthday.

Fifty-six-year-old Evelyn Border and 35-year-old Tina Griekspoor stood outside the court for 4 1/2 hours Tuesday.  They held signs that read: "I stole from a 9-year-old girl on her birthday!  Don't steal or this could happen to you!"

Because the women agreed to hold the signs, Bedford County District Attorney Bill Higgins says he'll ask for probation instead of jail when they plead guilty to the theft.  Higgins says they swiped a gift card that the girl set on a shelf while a Walmart employee helped her.

The girl's mother planned to drive by the courthouse to teach her daughter the importance of obeying the law.

Some new and old posts on shaming sentences:

November 4, 2009 in Criminal Sentences Alternatives | Permalink | Comments (8) | TrackBack

Is there a "middle ground" on California's sex offender residency restrictions?

The question in the title of this post is prompted by this press report on yesterday's argument before the California Supreme Court concerning the state's sex offender residency resrictions.  Here are the details:

The California Supreme Court appeared to be searching for a middle ground Tuesday in a dispute over whether thousands of formerly imprisoned sex offenders must live at least 2,000 feet from parks and schools, a voter-approved restriction that would exclude them from most of the state's urban areas.

A state lawyer argued that Proposition 83, a November 2006 initiative, imposed the residency restriction on all 65,000 registered sex offenders in California and subjected them to prosecution for violations.

An attorney for four paroled offenders, two from the Bay Area, said the restrictions covered, at most, only those who committed sex crimes after Prop. 83 passed — and made little sense even for that group.  "It is not rationally related to the harm the voters were trying to prevent," attorney Ernest Galvan told the court. The law limits only where ex-convicts can live, and doesn't prohibit them from entering parks or school grounds where children would be found, he noted.

Kenneth Mennemeier, lawyer for the state Department of Corrections and Rehabilitation, countered that Prop. 83 reflected voters' "desire to protect children from the threat of recidivism that sex offenders pose."  He said it should be interpreted broadly to apply to anyone who has ever been convicted of a sex crime requiring registration.  Those crimes range from indecent exposure to forcible rape.

Justice Marvin Baxter said both sides were "arguing extremes."  The court spent most of the one-hour hearing debating how the initiative affects offenders who were on parole when Prop. 83 passed, those who were paroled afterward, and those who have completed parole supervision but are still subject to the lifetime registration requirement.

The state says about 6,800 registered sex offenders are now on parole.  Nine months after Prop. 83 passed, parole officers began ordering them to leave their homes if they lived less than 2,000 feet from a park or school, and arresting them for parole violations if they stayed.  Under those rules, "San Francisco is one big exclusion zone," Galvan said. Because authorities have refused to let parolees move to other counties, he said, their only choices are homelessness or prison.

Baxter noted, however, that Galvan's four clients had all been paroled before Prop. 83 passed, and would not be subject to the residency restrictions if the court interpreted the measure to cover only post-November 2006 parolees.  That was the most logical interpretation of the measure, said Baxter, generally the court's most conservative justice.

November 4, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

A Canadian perspective of appellate sentencing review

I just saw via SSRN this notable article about appellate sentencing review, which is titled "Wrestling with Punishment: The Role of the BC Court of Appeal in the Law of Sentencing." Here is the abstract:

This article, one in a collection of articles on the history and jurisprudential contributions of the British Columbia Court of Appeal on the occasion of its 100th anniversary, looks at the role and the work of the court in the area of sentencing since the court was first given jurisdiction to hear sentence appeals in 1921.  In the three broad periods that we canvass, we draw out the sometimes surprising, often unique, and frequently provocative ways in which the BCCA has, over its history, wrestled with the practice of criminal punishment and, with it, the basic assumptions of our system of criminal justice.  We explore the important role that the BCCA has played in articulating a vision of what constitutes a just social response to criminal wrongdoing.

The court’s work in this area has been rich, its views on sentencing as mercurial as the practices of punishment.  At times the court has served quite directly as an institutional voice for dominant social views of punishment, whether they were of a more sternly retributive form or reflected an era of hope in rehabilitation.  Yet, in more recent years, the jurisprudence of the court has also included strong voices reflecting a critical posture towards traditional assumptions in our theories and practices of sentencing.  In the current political climate that finds a retributive ethos in the criminal law in ascendancy, this jurisprudence reminds us of the value of this posture — one that asks us to think more deeply, critically, and cautiously about the assumptions that tacitly guide our system of criminal justice.

November 4, 2009 in Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

DC Sniper makes (final?) appeal to SCOTUS before scheduled execution

As detailed in this Washington Post article and this SCOTUSblog post, lawyers for "sniper John Allen Muhammad, mastermind of the terrifying 2002 Washington area shooting spree, asked the U.S. Supreme Court on Tuesday to halt their client's execution, saying he was paranoid and delusional during his trial."  Here is how SCOTUSblog describes the legal particulars:

The new petition asked the Supreme Court to review two issues.  Paraphrased, they are: whether the Fourth Circuit was wrong in the standard it used to analyze the performance of his lawyers on the incompetency issue, and whether Congress has set a one-year filing period for the first habeas plea and thus that period cannot be shortened by federal judges.

The first question is a mixture of an inquiry into counsel’s performance, and a question of the scope of prejudice that may result from a flawed performance regarding competency.  Muhammad’s petition contends that, in judging whether Muhammad’s case was harmed when his lawyers failed to bring forth evidence of his incompetence, when the judge was considering whether to let Muhammad act as his own lawyer, the test is whether there was a reasonable chance the accused would have been found incompetent to waive his rights.  The Fourth Circuit, it adds, erred in focusing only on whether there was a reasonable prospect that the trial would have ended differently if Muhammad had not been his own lawyer (for two days of the trial)....

The second issue focuses on what the petition says is a truly novel practice, under which federal District Courts in Virginia routinely deny first-time habeas applicants a full year to prepare their habeas pleas.  Thus, the question raised is whether the one-year time provision in federal habeas law (enacted as part of the Antiterrorism and Effective Death Penalty Act) bars a federal judge from ordering an earlier filing.  Federal judges ordered Muhammad to proceed with plenty of time left in the one-year span, the petition says.

My gut instinct is that it is unlikely that the Justices will take up this high-profile capital case.  But, especially in death penalty settings, unexpected factors can sometimes lead to unexpected results. 

November 4, 2009 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

November 3, 2009

It is officially time for Second Amendment fans to start supporting NBA's Delonte West

This local article from Maryland, which is headlined "Cavs Delonte West Faces Weapons Charges," reports that a prominent NBA player is now officially facing state criminal charges for posessing guns in self defense.  Here are the basic legal details:

Prince George’s County Grand Jury has returned an eight count indictment against Cleveland Cavaliers Guard Delonte West.  West is charged with transporting concealed weapons.

Police say the former Eleanor Roosevelt High School basketball star was found with two loaded pistols and a shot gun after being pulled over on the Beltway September 17th.  Police say the Cavaliers guard was riding a three wheeled motorcycle when he cut an officer off on the outer loop near Central Avenue.  On the side of the road police say West admitted he was armed....

"These charges carry up to three years in jail for each offense,” said State’s Attorney Glenn Ivey. “So potentially he could be looking at some jail time here... I don't know that the sentencing guidelines are going to require that but we'll have to see how that plays out over time."

Ivey says West has not yet hired an attorney to represent him.  The State’s Attorney says he expects an early January trail date will be set.  West has not commented on his arrest but his father did, telling reporters in September his son was protecting himself from “a lot of not too nice people out there.”

Delonte West has said he suffers from Bipolar disorder.  He left training camp last year to get treatment for depression.  West, who could still face a league suspension over the charges in Maryland, made his season debut during Saturday night's 90-79 win against Charlotte, scoring 13 points in 24 minutes.

This Washington Post account of the indictment provides more of the legal particulars and also spotlights why West need to be seriously concerned about facing prison time:

In addition to the weapons offenses — each of which is a misdemeanor carrying a maximum penalty of three years in prison — the grand jury also indicted West, 26, on one count each of reckless driving and negligent driving.

Prince George's prosecutors routinely seek jail time for people convicted of weapons charges, even first-time offenders.  State's Attorney Glenn F. Ivey said West's case will be handled no differently than any other.

I trust that West has the resources to hire a first-rate criminal defense attorney.  I sincerely hope that his attorney(s) will have the insight and courage to realize that the Supreme Court's ruling and reasoning in Heller provide a plausible Second Amendment claim for West if he truly was keeping and bearing arms for personal self defense when pulled over by the police.

Some related posts on Delonte West's situation and other celebrity gun possession cases:

November 3, 2009 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (40) | TrackBack

Where sports, tragedy and the origins of bad federal sentencing law converge

Without-Bias-Urbanworld-web I received via e-mail this reminder from the folks at FAMM to set my DVR to ESPN tonight in order to record a documentary on a sports story and personal tragedy that would become the back-story to the origins of bad federal sentencing law on cocaine and crack penalties:

FAMM's president Julie Stewart is featured in the film "Without Bias," which tells the now-legendary story of University of Maryland college basketball star Len Bias.  In 1986, Bias was drafted by the Boston Celtics.  Later that night, he died from a cocaine overdose while celebrating his success.  His untimely death rocked the nation and led to the creation of the mandatory minimum drug sentences that are still on the books today.  To learn more and see a preview of the film, visit ESPN's website here.

The sentencing details of how Bias's death impact federal sentencing legislation is captures in part in Chapter 6 of the US Sentencing Commission's 1995 report to Congress on cocaine policy:

A few weeks after Bias's death, on July 15, 1986, the United States Senate's Permanent Subcommittee on Investigations held a hearing on crack cocaine.  During the debate, Len Bias's case was cited 11 times in connection with crack.  Eric Sterling, who for eight years served as counsel to the House Judiciary Committee and played a significant staff role in the development of many provisions of the Drug Abuse Act of 1986, testified before the United States Sentencing Commission in 1993 that the "crack cocaine overdose death of NCAA basketball star Len Bias" was instrumental in the development of the federal crack cocaine laws.  During July 1986 alone, there were 74 evening news segments about crack cocaine, many fueled by the belief that Bias died of a crack overdose.

Not until a year later, during the trial of Brian Tribble who was accused of supplying Bias with the cocaine, did Terry Long, a University of Maryland basketball player who participated in the cocaine party that led to Bias's death, testify that he, Bias, Tribble, and another player snorted powder cocaine over a four-hour period. Tribble's testimony received limited coverage.

November 3, 2009 in Drug Offense Sentencing | Permalink | Comments (2) | TrackBack